Wisniewski & Ors v Regional Court of Wroclaw, Poland & Ors

In conviction extradition proceedings, the relevant period under section 14 of the Extradition Act 2003 begins when the person becomes unlawfully at large. A suspended prison sentence normally requires activation before that period starts. Knowledge of activation is irrelevant to that objective status.

The fugitive principle is separate and requires proof beyond reasonable doubt. A person who voluntarily leaves the jurisdiction, knowingly prevents compliance with suspension conditions and knows that activation may follow cannot rely on resulting delay if the sentence is consequently activated. Knowledge of actual activation is unnecessary, and an economic motive does not prevent the principle applying.

Article 8 requires a balance between private and family life and the weighty public interest in extradition. Courts must respect the requesting state's sentencing policy and enforcement of suspended sentences.

Wojciech Wisniewski, Tomasz Sapor and Karolina Wirynska appealed against orders for their extradition to Poland under conviction European arrest warrants. The requesting authorities were respectively the Regional Court of Wroclaw, the Regional Court of Poznan and the District Court in Torun. Wisniewski and Sapor were sought to serve two-year prison sentences for theft and fraud offences. Wirynska was sought to serve a one-year sentence for thefts committed during her employment.

Each sentence had initially been suspended and was subsequently activated. Each appellant had left Poland during the suspension period. Their cases raised questions about breaches of compensation, probation supervision or address-notification requirements and their lack of knowledge that the sentences had been activated.

District Judge Grant ordered the extradition of Wisniewski and Sapor at Westminster Magistrates' Court. District Judge Zani ordered Wirynska's extradition. The orders were made on 20 November 2015. Sapor had represented himself below and received permission to adduce further evidence on appeal.

The common issue was whether the appellants could invoke the passage-of-time bar under section 14 of the Extradition Act 2003. This required the court to distinguish being unlawfully at large from fugitive status. Wisniewski and Sapor also challenged extradition under Article 8; the court additionally considered that issue for Wirynska.

The court unanimously dismissed all three appeals. Lloyd Jones LJ delivered the substantive judgment, with which Holroyde J agreed.

1. In a conviction case, section 14(b) of the Extradition Act 2003 permits reliance only on time elapsed since the person became unlawfully at large. That expression describes an objective state of being at large in contravention of a lawful sentence. Knowledge of the sentence's activation is irrelevant. A breach of suspension conditions does not itself suffice where a further judicial act is required before detention. Each appellant therefore became unlawfully at large when the prison sentence was activated. The court left open the position where an arrest warrant precedes activation (paras [50]–[57]).

2. Fugitive status is a distinct, non-statutory concept which must be established beyond reasonable doubt. A person who knowingly places himself beyond the reach of legal process ordinarily cannot rely on resulting delay to resist extradition. The principle extends to voluntary departure which knowingly prevents performance of suspension obligations, where the person knows that activation may follow and the sentence is subsequently activated as a result. Activation need not have been inevitable. An economic motive for departure does not prevent the principle applying (paras [58]–[60]).

3. Actual knowledge of activation is unnecessary for fugitive status. The contrary approach associated with Pinto [2014] EWHC 1243 (Admin) and the decisions following it was rejected. Salbut [2014] EWHC 4275 (Admin) was followed on fugitive status, although its view that breach of suspension conditions itself made a person unlawfully at large was disapproved. A person whose breach prevents notification of activation cannot rely on that resulting ignorance (paras [52]; [54]; [62]).

4. All three appellants were fugitives and could not rely on section 14. In Sapor's case, the court doubted whether the district judge could establish obligations by drawing on evidence from other cases. Nevertheless, the proved primary facts permitted a criminal-standard inference that activation resulted from breach of his sentence conditions. Independently, extradition was neither unjust nor oppressive through passage of time in any case. Sapor's family hardship did not meet the higher standard of oppression (paras [64]–[72]).

5. Article 8 requires careful assessment of interference with private and family life against the weighty public interest in extradition. There is no exceptionality test. The public interest varies with offending and delay. Courts must respect other Member States' sentencing policies and the importance they attach to enforcing suspended sentences. The appellate question is whether the district judge's decision was wrong; errors in reasons do not necessarily establish a wrong outcome. The proportionality decisions were correct despite the mistaken descriptions of when some appellants became unlawfully at large (paras [46]–[49]; [74]–[84]).

6. Obiter, Article 8 can provide a safety net by allowing consideration of delay falling outside section 14's statutory period. The hypothetical difficulty identified did not require an expanded interpretation of section 14(b) (para [56]).

• High Court (Administrative Court): In [2016] EWHC 386 (Admin) , the court unanimously dismissed all three appeals and upheld the extradition orders.
• Westminster Magistrates' Court: District Judge Grant ordered the extradition of Wisniewski and Sapor on 20 November 2015 after hearings on 4 November 2015.
• Westminster Magistrates' Court: District Judge Zani ordered Wirynska's extradition on 20 November 2015. His reasons were recorded in a judgment dated 26 November 2015.